Sophia Daire v. Mary Lattimore

Filing 37

ORDER ACCEPTING IN PART AND REJECTING AND MODIFYING IN PART REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE by Judge Dolly M. Gee for Report and Recommendation (Issued), 34 . (mz)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 SOPHIA DAIRE, Petitioner, 12 v. 13 14 15 ) ) ) ) ) ) ) ) ) ) ) MARY LATTIMORE, WARDEN, Respondent. 16 Case No. CV 10-3743-DMG (AJW) ORDER ACCEPTING IN PART AND REJECTING AND MODIFYING IN PART REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE 17 18 Having reviewed the entire record in this action, the Report and 19 Recommendation of Magistrate Judge (“Report”) [Doc. # 34], and petitioner’s 20 objections [Doc. # 36], the Court has made a de novo determination of the portions 21 of the Report to which objections were directed. Based thereon, the Court concurs 22 with and accepts the findings of fact, conclusions of law, and recommendations 23 contained in the Report, except as explained hereinafter. 24 25 This Court agrees with the Magistrate Judge that trial counsel’s failure to investigate and present any mental health evidence to support petitioner’s Romero1 26 27 28 1 People v. Superior Court (Romero), 13 Cal. 4th 497, 53 Cal. Rptr. 2d 789 (1996), holds that a trial court has the power to dismiss prior felony allegations in a case subject to California’s “Three Strikes” law, Cal. Penal Code §§ 667(b)-(i), 1170.12(a)-(d). -1- 1 motion amounted to deficient performance. For the reasons set forth below, 2 however, this Court respectfully disagrees with the Magistrate Judge’s 3 determination that he “cannot say that the state court’s conclusion is an 4 unreasonable application of Strickland’s2 prejudice standard.”3 5 I. 6 PREJUDICE EXISTS UNDER THE STRICKLAND STANDARD In denying Sophia Daire’s petition for writ of habeas corpus, the California 7 Superior Court concluded that trial counsel’s performance did not fall below 8 “prevailing norms,” and that petitioner’s Romero motion would have been denied 9 even if trial counsel had presented evidence of her mental illness. (1st Am. Pet., 10 Ex. A at 8, 9.) [Doc. # 18-1.] Therefore, in the Superior Court’s view, the 11 omission of this evidence had no impact on the sentence petitioner received. 12 Although the Magistrate Judge found that trial counsel’s legal representation in 13 connection with the Romero motion was indeed deficient, he nonetheless 14 concluded that, even if the Strickland standard applied at the sentencing phase, 15 there was no prejudice here. (Report at 16-17.) 16 In Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 173 L.Ed.2d 251 17 (2009), the Supreme Court explained that the Strickland standard is highly 18 deferential to the state court’s conclusion: the question “‘is not whether a federal 19 court believes the state court’s determination’ under the Strickland standard ‘was 20 incorrect but whether that determination was unreasonable—a substantially higher 21 threshold.’” Id. at 123 (quoting Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 22 1933, 167 L.Ed.2d 836 (2007)). Notwithstanding the high level of deference to be 23 accorded the state court’s decision, this Court finds that the Superior Court’s 24 25 26 2 27 3 28 Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This Court accepts and adopts the Report, except for the following: page 16, line 10 through page 17, line 6. -2- 1 conclusion is an unreasonable application of Strickland’s prejudice standard and 2 disagrees with the Magistrate Judge to the extent he found to the contrary. 3 Important to the prejudice assessment, and not even mentioned in the 4 Superior Court’s denial of habeas relief, is the fact that when declaring a mistrial 5 after the first trial ended with a deadlocked jury, the trial court stated, “[t]he court 6 could attempt to undercut the People’s offer, certainly on Romero, and I think 7 there’s a strong basis for that.” [RT D-27 (emphasis added).] This statement 8 suggests that the trial court, which had just heard the evidence presented during the 9 first trial, was inclined to find a basis for granting a Romero motion. The Romero 10 motion ultimately presented to the trial court, however, failed to include any 11 evidence regarding petitioner’s severe mental illness, the effect of that mental 12 condition on her culpability, and the medical opinion that her illness was treatable. 13 The failure of counsel to present evidence of a defendant’s mental illness as a 14 mitigating circumstance at sentencing is “a deficiency that has repeatedly been 15 found prejudicial” under Strickland. James v. Ryan, __ F.3d __, 2012 WL 639292, 16 at *33, 2012 U.S. App. LEXIS 4100, at *93-94 (9th Cir. Feb. 29, 2012) (citing 17 cases). As a result of this significant omission of highly relevant evidence, the trial 18 court stated its understanding that “it is her drug problem that is spurring her on to 19 re-offend.” [RT 236-237 (emphasis added).] Thus, the trial court denied the 20 Romero motion at sentencing. 21 This Court finds that the mental illness evidence omitted by counsel in the 22 Romero motion, as set forth more fully in the Magistrate Judge’s Report at pages 23 11-12, directly relates to the degree of petitioner’s culpability, potentially explains 24 her drug use and recidivism, and would have provided the “strong basis” for the 25 Romero motion that the trial court initially anticipated. 26 The Superior Court’s order denying the habeas petition introduced the 27 prejudice discussion with its conclusion that “[e]ven if the trial court would have 28 heard more argument concerning Daire’s drug use, psychological issues, and -3- 1 childhood, Daire’s sentence would not have been any different.” (First Amended 2 Petition for Writ of Habeas Corpus, Exhibit A at 9 (emphasis added).) [Doc. # 18- 3 1.] The Superior Court did not properly address the prejudice that ensued due to 4 the failure to present any evidence of serious mental illness. Instead, the court 5 appeared to assume, erroneously, that the attorney’s deficient representation 6 involved only the omission of more legal “argument.” It did not so much as 7 acknowledge the trial counsel’s complete failure to marshal the existing facts 8 which most dramatically underscore the breadth and scope of petitioner’s mental 9 condition. The Superior Court purported to support its conclusion by citing the 10 appellate court’s observation that petitioner was precisely the type of criminal for 11 whom the Three Strikes law was devised. (Id. at 10.) This, of course, begs the 12 question and is irrelevant to an analysis of the prejudice issue. The Superior Court 13 then went on to discuss the issues raised on appeal and concluded that petitioner’s 14 “attempt to attribute her long record of recidivism to a long standing and serious 15 substance abuse and/or psychological disorder is unavailing. As the Court of 16 Appeal noted, Daire’s prospects upon release from prison are dim, especially when 17 Daire reoffended shortly after being released from prison.” (Id. at 11.) This is the 18 only passage that can even arguably be construed as an attempt to address the 19 prejudice prong. Yet, the Superior Court assumed that the absence of prejudice 20 was a foregone conclusion and supported that conclusion with the facts as they 21 appeared to the sentencing and appellate courts. It, therefore, failed to even 22 consider whether the presentation of mental health evidence could have made a 23 difference to the sentencing court. 24 Not only is there a reasonable probability that there would have been a more 25 favorable outcome if trial counsel had presented evidence of the petitioner’s severe 26 mental illness to the sentencing court, the Superior Court’s finding of a lack of 27 prejudice was an unreasonable application of Strickland’s prejudice standard. 28 -4- 1 II. THIS COURT CANNOT APPLY STRICKLAND TO A NONCAPITAL 2 SENTENCING CASE 3 Having determined that petitioner’s claim of ineffective assistance of 4 counsel during the sentencing phase meets the Strickland standard, this Court 5 nevertheless is constrained from granting a writ because of the Ninth’s Circuit’s 6 decision in Davis v. Grigas, 443 F.3d 1155, 1158 (9th Cir. 2006) (citing Cooper- 7 Smith v. Palmateer, 397 F.3d 1236, 1244 (9th Cir. 2005)). In Davis, the Court held 8 that “since Strickland, the Supreme Court has not delineated a standard which 9 should apply to ineffective assistance of counsel claims in noncapital sentencing 10 cases. Therefore, . . . there is no clearly established federal law as determined by 11 the Supreme Court in this context.” 443 F.3d at 1158 (internal citation omitted). 12 This Court respectfully disagrees with Davis and Cooper-Smith. In Glover v. 13 United States, 531 U.S. 605 (2001), which predates both Davis and Cooper-Smith, 14 the Supreme Court applied the Strickland standard to a noncapital sentencing 15 proceeding. Judge Graber’s concurrence in Davis recognizes that after Glover, 16 there is clearly established federal law as determined by the Supreme Court that 17 Strickland applies to noncapital sentencing proceedings. 443 F.3d at 1159-60; 18 accord Davis v. Belleque, No. 10-36035, 2012 WL 76897, at *1, 2012 U.S. App. 19 LEXIS 760, at *2-3 (9th Cir. Jan. 11, 2012) (unpublished disposition) (Paez, J., 20 concurring). This view is confirmed in the Supreme Court’s recent decision in 21 Lafler v. Cooper, __ U.S. , __ S.Ct.__, 2012 WL 932019 (Mar. 26, 2012), in 22 which the Supreme Court stated as follows: 23 The precedents also establish that there exists a right to 24 counsel during sentencing in both noncapital, see Glover 25 v. United States, 531 U.S. 198, 203-204, 121 S.Ct. 696, 26 148 L.Ed.2d 604 (2001); Mempa v. Rhay, 389 U.S. 128, 27 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), and capital cases, 28 see Wiggins v. Smith, 539 U.S. 510, 538, 123 S.Ct. 2527, -5- 1 156 L.Ed.2d 471 (2003). Even though sentencing does 2 not concern the defendant’s guilt or innocence, 3 ineffective assistance of counsel during a sentencing 4 hearing can result in Strickland prejudice because “any 5 amount of [additional] jail time has Sixth Amendment 6 significance.” Glover, supra, at 203, 121 S.Ct. 696. 7 2012 WL 932019, at *6.4 8 Irrespective of the proper interpretation of the Supreme Court precedents 9 pertaining to ineffective assistance of counsel, this Court is bound by Davis and 10 Cooper-Smith until they are reversed en banc or by the Supreme Court. Hart v. 11 Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001). Accordingly, this Court 12 reluctantly concurs with the Magistrate Judge’s ultimate recommendation that 13 judgment be entered denying the petition. 14 IT IS SO ORDERED. 15 16 DATED: April 9, 2012 __________________________ DOLLY M. GEE United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 4 Since Cooper-Smith, the Ninth Circuit has also applied the Strickland standard to noncapital sentencing habeas petitions, albeit finding no prejudice under that standard without directly addressing Strickland’s applicability. See Gonzalez v. Knowles, 515 F.3d 1006 (9th Cir. 2008) (finding no prejudice under Strickland because there was no evidence showing that habeas petitioner was mentally ill). -6-

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